Lawsuits challenge Trump’s trim of Utah monuments

Reductions in Bears Ears and Grand Staircase-Escalante exclude thousands of significant objects.


Heidi McIntosh’s first case as an environmental lawyer in the early 1990s was an attempt to block a coal mine in a remote red rock region of southern Utah. The area is a treasure trove of dinosaur fossils, archaeological sites and gorgeous scenery. The effort could not have been more successful. In 1996, President Bill Clinton permanently protected the Kaiparowits Plateau when he designated Grand Staircase-Escalante National Monument. Or so, at least, he thought.

Now, 21 years later, President Donald Trump has slashed that monument by nearly half. The paleontologists’ wonderland where Andalex Resources wanted to mine coal now lies outside Trump’s new boundary lines. And McIntosh is again fighting to protect the Kaiparowits and its treasures as a lead attorney for a broad array of environmental groups. McIntosh also represents many of the same groups in a parallel effort to block the downsizing of Bears Ears National Monument, which President Barack Obama created in 2016. Trump designated two much smaller monuments, Indian Creek and Shash Jáa (the Navajo word for Bears Ears). Together, the two replacements cover only about 15 percent of the land in Obama’s Bears Ears.

Trump’s actions were an unprecedented setback for the conservation of public lands, and they have unleashed a torrent of litigation. The plaintiffs include five tribes, archaeologists, paleontologists, photographers, climbers and businesses — and all of them have done their homework. They have extensive reports documenting the rich cultural, scenic and recreational resources that Trump has removed from Bears Ears and Grand Staircase, and they are determined to use the courts to restore the original boundaries and uphold the principle that only Congress can eliminate a national monument and the high level of protection it affords.

Navajo Nation Attorney General Ethel Branch speaks during a news conference in early December in Salt Lake City. She is one of the attorneys representing the tribes in the Bears Ears case, and said in a statement, "We want to ensure that those lands and the knowledge tied to those lands are preserved and protected.”
Rick Bowmer/AP

Five tribes — Navajo Nation, Zuni, Hopi, Ute and Ute Mountain Ute — led the original push for the creation of Bears Ears to protect their ancestral lands. Now, those five tribes have separately the president to restore protection to all 1.35 million acres. “We want to ensure that those lands and the knowledge that is tied to those lands are preserved and protected … and that our ways of being can continue to exist,” said Ethel Branch, attorney general of the Navajo Nation, one of the plaintiffs.

Another was filed by an assortment of Bears Ears’ advocates, including , a Native American nonprofit group that began advocating for the monument in 2010, along with , Friends of Cedar Mesa, Archaeology Southwest, Conservation Lands Foundation, Access Fund, the Society for Vertebrate Paleontology and the National Trust for Historic Preservation.

Grand Staircase Escalante Partners, a local group that supports that monument, also filed a with Conservation Lands Foundation and the Society of Vertebrate Paleontology. That makes three suits defending Bears Ears and two on behalf of Escalante, all filed in U.S. District Court in the District of Columbia. Most have been assigned to Judge , appointed by Obama in 2014.

For both monuments, the plaintiffs’ main legal argument is simple. The Constitution gives Congress authority over public lands. In the , Congress expressly gave presidents the right to establish national monuments. But the act never mentions abolishing or modifying monuments. The main question for the federal judge will be whether it was within the president’s power to shrink those monuments. Says McIntosh: “The answer is the same (for both): ‘No, there is no authority for him to do that.’ ”

Under the Antiquities Act, presidents have power to protect historic and prehistoric landmarks, structures and “other objects of historic or scientific interest,” though they’re limited to preserving the “smallest area compatible with the proper care and management of the objects to be protected.” Opponents of the monuments, including Trump, cite this part of the act when arguing that both Clinton and Obama exceeded their authority by making Grand Staircase-Escalante and Bears Ears so large. While acknowledges that many objects protected by Bears Ears were left out of the much smaller new monuments, he argues that those excluded objects were not unique, not threatened or “are not of significant scientific or historic interest.”

Ironically, monument supporters also see the same part of the Antiquities Act as crucial to their cases, arguing that tens of thousands of artifacts and other important religious, cultural, historic, scientific and scenic features were left out of the reduced boundaries. The tribes’ asserts that by excluding so many previously protected objects, Trump’s proclamation must be seen as revoking Bears Ears, not just modifying it. Either way, they assert that his action was illegal.

A by the coalition of pro-monument tribes mapped hundreds of important archaeological sites, most of them now outside of the new monuments. For instance, the White Canyon area, which Trump excluded from Bears Ears, holds artifacts from the region’s earliest inhabitants — the mammoth and bison hunters of the late Pleistocene. White Canyon also contains many “Nahonidzho,or “escaping places,” where Navajos hid during the Long Walk, the 1864 deportation of the Navajo people by the U.S. government.

“Bears Ears is an area with objects all over the place. I’m confident we’ll be able to show that,” says , a University of Colorado law professor who specializes in public land and Indian law and is representing the Ute Mountain Ute, Zuni and Hopi tribes in court.

Valley of the Gods, in the southern end of the original Bears Ears, is sacred to the Navajo and an important paleontological site. It’s excluded from the new monument.
Bureau of Land Management

Another area highlighted by Obama for its extraordinary features but left out by Trump is the in the southern end of the original Bears Ears. Obama’s declares: “The towering spires in the Valley of the Gods are sacred to the Navajo, representing ancient Navajo warriors frozen in stone.” Paleontologists also value the area because fossils of some of the to walk in North America have been found here. Trump justifies his decision by saying that Valley of the Gods is already protected as an , a special Bureau of Land Management designation.

Some paleontological resources are no longer protected, under the new boundaries of the former Grand Staircase-Escalante National Monument. (Click to view larger.)
Society of Vertebrate Paleontology, 2017. P. David Polly

But it’s misleading for the Trump administration to suggest that other protective designations are as strong as monument status, says Justin Pidot, one of the tribes’ lawyers, who is an associate law professor at the University of Denver and a former deputy solicitor at the Interior Department. “No judge will buy that lie. It doesn’t pass the laugh test. If nothing is changed (in the level of protection) there would be no point in a monument designation,” he says.

Under a 2008 management plan, the BLM closed the Valley of the Gods to oil and gas leasing. But a future plan could reopen it, and starting 60 days after Trump’s announcement, miners can stake claims for uranium, potash or other hardrock minerals in the Valley of the Gods or any other part of the original monuments that are not within Trump’s monument boundaries. Many areas left out of Trump’s new version of Bears Ears will be reopened for oil and gas drilling, including White Canyon and Lockhart Basin, an archaeologically rich area popular with climbers.

Similar examples abound outside Trump’s new boundaries for Grand Staircase-Escalante as well. The Kaiparowits Plateau, for instance, is home to the Straight Cliffs Formation, where the coal beds are interlaid with abundant fossils that provide insights into a period of time “that cannot be studied in detail anywhere else in the world,” according to the paleontologists’ lawsuit. Since 1996, 12 new species of dinosaurs have been discovered there. While Clinton’s monument ended Andalex’s coal-mining ambitions on the plateau, Trump’s action has rekindled that prospect.

These facts should prove persuasive to the judge,  says Steve Bloch, the legal director of the Southern Utah Wilderness Alliance who’s a leading lawyer in the environmental groups’ Bears Ears and Escalante cases. “That’s indisputable,” he says. “The new boundaries cut in half areas previously designated where some fossil records or geological features lie.”

One key legal strategy of Grand Staircase-Escalante’s defenders does not apply to Bears Ears, however. Since 1996, Congress has repeatedly endorsed and acknowledged Clinton’s monument. “Grand Staircase has been around over 20 years,” says McIntosh, managing attorney for Earthjustice’s Rocky Mountain office. “Congress has acted numerous times in ways that essentially ratify the monument” — providing money to buy back coal leases and regularly funding the monument’s budget, for example. It even increased the boundaries through land exchanges, when Utah swapped state-land parcels within the monument for mineral-rich parcels in other areas so it wouldn’t lose out on revenues. Congress also gave Utah $50 million. “We think those actions taken together confirm that Congress has ratified the monument and the president can’t undo it,” Bloch says.

Ultimately, much more than these two Utah monuments is at stake here. “If a president is authorized to modify and revoke, then no national monument is safe,” says Erik Murdock, policy director of the Access Fund, a plaintiff in one of the cases. “We believe this battle is critical for the fight for public lands in general — that’s why we’re going all in on this.”

Correspondent Elizabeth Shogren writes HCN’s DC Dispatches from Washington.

NewTowncarShare News Classifieds
  • Borderlands Restoration, L3c is the founding organization of the Borderlands Restoration Network. Borderlands Restoration Network (BRN) is both an independent public charity and a collaborative...
  • Assistant Editor, NewTowncarShare News, Telecommute. Edit, write and help shape digital strategy for one of the best magazines in the country. Committed to inclusivity....
  • Associate Editor, West-north Desk, NewTowncarShare News, Telecommute. Dream job. Write, edit and contribute to the vision and strategy of one of the best magazines...
  • Take over the reins of a dynamic grassroots social justice group that protects Montana's water quality, family farms and ranches, & unique quality of life....
  • EXECUTIVE DIRECTOR - Winter Wildlands Alliance seeks an experienced and highly motivated individual to lead and manage the organization as Executive Director. Visit for...
  • Background: The Birds of Prey NCA Partnership is a non-profit 501(c)(3) organization based in Boise, Idaho, which was established in 2015 after in-depth stakeholder input...
  • Southwest Borderlands Initiative Professor of Native Americans and the News Media The Walter Cronkite School of Journalism and Mass Communication at Arizona State University is...
  • AWF seeks an energetic Marketing and Communications Director. Please see the full job description at
  • The Southwest Communications Director will be responsible for working with field staff in Arizona, Colorado and New Mexico to develop and execute detailed communication plans...
  • An intentional community designed for aging in place. Green built with Pumice-crete construction (R32), bamboo flooring, pine doors, T&G ceiling with fans, and maintenance free...
  • (CFROG) is a Ventura County, CA based watch-dog and advocacy non-profit organization.
  • Take your journalism skills to the next level and deepen your understanding of environmental issues by applying for the 2019-2020 Ted Scripps Fellowships in Environmental...
  • The San Juan Mountains Association is seeking a visionary leader to spearhead its public lands stewardship program in southwest Colorado. For a detailed job description...
  • The Cascade Forest Conservancy seeks a passionate ED to lead our forest protection, conservation, education, and advocacy programs.
  • Mountain Pursuit is a new, bold, innovative, western states, hunting advocacy nonprofit headquartered in Jackson, Wyoming. We need a courageous, hard working, passionate Executive Director...
  • The Draper Natural History Museum (DNHM) at the Buffalo Bill Historical Center of the West in Cody, WY, invites applications for the Willis McDonald, IV...
  • Couple seeks quiet, private, off-grid acreage in area with no/low cell phone service and no/low snowfall. Conservation/bordering public lands a plus. CA, OR, WA, ID,...
  • Former northern Sierra winery, with 2208 sq.ft. commercial building, big lot, room to expand.
  • The dZi Foundation is seeking a FT Communications Associate with a passion for Nepal to join our team in Ridgway, Colorado. Visit
  • Available now for site conservator, property manager. View resume at